{"id":812,"date":"2012-08-09T19:35:46","date_gmt":"2012-08-09T19:35:46","guid":{"rendered":"http:\/\/vtjuryinstructions.org\/?page_id=812"},"modified":"2023-05-24T15:34:36","modified_gmt":"2023-05-24T15:34:36","slug":"general-concepts","status":"publish","type":"page","link":"https:\/\/vtjuryinstructions.org\/?page_id=812","title":{"rendered":"General Concepts"},"content":{"rendered":"

CR09-011.\u00a0 Identity of Defendant as First Element<\/a> (07\/29\/05).\u00a0 Most criminal charges include identity as the first essential element, with a short instruction such as CR09-011.\u00a0 In some cases it may be appropriate to elaborate, such as where the issue of identity turns on eyewitness identification.\u00a0 See CR05-601 and the accompanying notes.\u00a0 The essential element of identity may be shown by circumstantial evidence.\u00a0 State v. Erwin<\/span>, 2011 VT 41; State v. Hoch<\/span>, 2011 VT 4; State v. Danforth<\/span>, 2008 VT 69, 184 Vt. 122.<\/p>\n

CR09-021.\u00a0 Alibi<\/a> (12\/13\/10).\u00a0 The instruction explains that the jury should return a verdict of not guilty if they have a reasonable doubt as to whether defendant was present at the time and place alleged.\u00a0 State v. Ovitt<\/span>, 148 Vt. 398, 402\u201303 (1987).\u00a0 The defendant does not bear any burden of proving an alibi, because it is always the burden of the state to prove that the defendant was the one who committed the charged offense.\u00a0 Id<\/span>.; Stump v. Bennett<\/span>, 398 F.2d 111, 114\u201315 (8th Cir. 1968).\u00a0 Even if the defendant does not persuade the jurors that he or she was at some other specific place at the time of the alleged offense, the jurors may still question whether the state\u2019s evidence proved beyond a reasonable doubt that the defendant was the one who committed the charged offense.<\/p>\n

In some cases, however, the state may introduce affirmative evidence showing that the defendant\u2019s evidence of alibi is not only unworthy of belief but actually fabricated or false.\u00a0 In these cases, the judge may decide to instruct the jurors that if they find the alibi evidence to be actually fabricated or false beyond a reasonable doubt, then they may consider the attempt to fabricate evidence to be some evidence of consciousness of guilt that may be considered along with all of the other evidence in the case.\u00a0 State v. Forty<\/span>, 2009 VT 118, 187 Vt. 79; State v. Ovitt<\/span>, 148 Vt. 398, 402\u201303 (1987); State v. Ladabouche<\/span>, 127 Vt. 171, 177 (1968); State v. Conley<\/span>, 107 Vt. 72, 76 (1935); State v. Ward<\/span>, 61Vt. 153, 194 (1888).<\/p>\n

Use of the \u201cfalse or fictitious alibi\u201d language requires a distinction between actual fabrication of evidence and mere failure to establish an alibi.\u00a0 An instruction that suggests that the jurors may infer guilt if the defendant offers an alibi defense but fails to prove it is impermissible because it \u201cimplies a shifting of the burden of proof from the state to the defendant, and as such, violates due process.\u201d\u00a0 Ovitt<\/span>, 148 Vt. at 402.\u00a0 Use of the \u201cfalse or fictitious alibi\u201d instruction, therefore, is best limited to cases in which the state has introduced affirmative evidence tending to show the outright falsity of the alibi.\u00a0 Forty<\/span>, 2009 VT 118, \u00b6\u00a018.<\/p>\n

Additional caution is warranted because \u201cconsciousness of guilt\u201d evidence (e.g., evidence of flight, or false exculpatory explanations offered to a police officer) has limited probative value and is not sufficient by itself to support a conviction.\u00a0 State v. McAlister<\/span>, 2008 VT 3, \u00b6\u00b6\u00a028, 32\u201333, 183 Vt. 126 (Dooley, J., dissenting); State v. Onorato<\/span>, 171 Vt. 577, 578\u201379 (2000) (mem.); State v. Unwin<\/span>, 139 Vt. 186, 193 (1980).\u00a0 The judge may decide whether to give the \u201cfalse or fictitious alibi\u201d instruction based on the circumstances of the case and the arguments of counsel.<\/p>\n

CR09-051.\u00a0 Causation<\/a> (09\/22\/03). In most cases, the court should not elaborate on the meaning of causation, because jurors already understand it. The description of \u201cefficient intervening cause\u201d is appropriate only if there is evidence supporting it. Nevertheless, there will be cases in which elaboration is desirable and appropriate. In such cases the lawyers should raise the issue with the judge.<\/p>\n

The Vermont Supreme Court has indicated approval of a short, simple explanation of causation, in State v. Johnson<\/span>, 158 Vt. 508, 512 (1992). The Court has affirmed that the defendant\u2019s actions must be a cause, rather than the cause of the harm. State v. Martin<\/span>, 2007 VT 96, \u00b6 40, 182 Vt. 377. Martin<\/span> disapproved of a statement from State v. Yudichak<\/span>, 151 Vt. 400, 403(1989), that the defendant\u2019s acts had to have been the cause of the harm, and reaffirmed the earlier explanation of causation from State v. Rounds<\/span>, 104 Vt. 443, 453 (1932), that \u201crespondent\u2019s unlawful acts need not be the sole cause of death; it is sufficient if they were a contributory cause.\u201d<\/p>\n

However, statutory enactments may impose a requirement of direct causation.<\/p>\n

The Court affirmed the trial court\u2019s causation instruction on DUI-death resulting in State v.Sullivan<\/span>, 2017 VT 24, \u00b6\u00b6 12\u201323, 204 Vt. 328. In construing the particular statute in issue (23 V.S.A. \u00a7 1210(f)(1)), the Court observed that \u201c[w]here the statute involves a specified result that is caused by conduct, it must be shown, as a minimal requirement, that the accused\u2019s conduct was an antecedent \u2018but for\u2019 which the result in question would not have occurred.\u201d Sullivan<\/span>, 2017 VT 24, \u00b6 19 (citing 1 Wharton\u2019s Criminal Law \u00a7 26 (15th ed. 2016)). So, in a prosecution for DUI-death resulting,<\/p>\n

a jury instruction . . . must require findings that: (1) the defendant operated a vehicle on a highway; (2) he or she did so while under the influence of intoxicating liquor; and<\/span> (3) his or her intoxication while operating the vehicle caused the victim\u2019s death. A mere violation of \u00a71201, standing alone, is insufficient to meet the requirement that the death result from<\/span> the violation of the statute.<\/p>\n

Id<\/span>. \u00b6 19 (emphasis in original).<\/p>\n

CR09-301.\u00a0 Accomplice Liability (where defendant was present at the scene)<\/a>\u00a0and CR09-305, Accomplice Liability (where defendant was not present at the scene)<\/a>\u00a0 (12\/22\/03).\u00a0\u00a0The instructions on accomplice liability states the general rule from State v. Barr<\/span>, 126 Vt. 112 (1966), and State v. Orlandi<\/span>, 106 Vt. 165 (1934).\u00a0 The Supreme Court has re-stated and clarified the rule in the context of felony murder, in the companion cases State v. Bacon<\/span>, 163 Vt. 279 (1995), and State v. Hudson<\/span>, 163 Vt. 316 (1995).\u00a0 The requirement that the defendant must have acted with the same intent as that of the principal perpetrator is discussed in Bacon<\/span>, 163 Vt. at 289.\u00a0 See<\/em> State v. Doucette<\/span>, 143 Vt. 573 (1983) (reinterpretingVermont\u2019s felony murder statute, 13 V.S.A. \u00a7 2301).<\/p>\n

These instructions note that State has charged the defendant as an accomplice.\u00a0 If the evidence is unclear about who was the principal actor, the instructions should explain that the State may prove that the defendant committed the crime either<\/em> as an accomplice, or<\/em> as the principal actor.\u00a0 In State v. Green<\/span>, 2006 VT 64, 180 Vt. 544, the Supreme Court held that it was not plain error for the court to instruct, on the actus reus <\/em>element, that \u201cthe defendant or his accomplice\u201d must have sold the heroin.\u00a0 The instruction meets the constitutional requirement that the jury reach a unanimous verdict on the essential elements of the crime.\u00a0 Compare State v. Couture<\/span>, 146 Vt. 268 (1985) (where the jury was told it could convict the defendant of kidnapping, for confining any one of the five alleged victims, but where there was no instruction to ensure unanimity regarding the essential element that the defendant had confined a particular person).<\/p>\n

Accomplice liability may be shown by encouragement by someone who was present at the scene.\u00a0 See<\/em> State<\/span> v. Orlandi<\/span>.\u00a0 However, the committee questions whether a defendant may be convicted of accomplice liability based on encouragement by someone who was not present at the scene.\u00a0 For that reason, \u201cencouragement\u201d is included in CR09-301, but not in CR09-305.<\/p>\n

The committee recognizes that the jurors might be unfamiliar with the term \u201cexpress agreement.\u201d\u00a0 The following definitions appear in Black\u2019s Law Dictionary (6th<\/sup> ed.):<\/p>\n

Express<\/em>.\u00a0 <\/strong>Clear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous.\u00a0 Declared in terms, set forth in words.\u00a0 Directly and distinctly stated.\u00a0 Made known distinctly and explicitly, and not left to inference. . . .\u00a0 Manifested by direct and appropriate language, as distinguished from that which is inferred from conduct.\u00a0 The word is usually contrasted with \u201cimplied.\u201d [citations omitted].<\/p>\n

CR09-311.\u00a0 Abandonment of the Criminal Enterprise (in context of felony murder)<\/a> (12\/22\/03)<\/p>\n

CR09-315.\u00a0 Abandonment of the Criminal Enterprise (generic)<\/a> (12\/22\/03)<\/p>\n

CR09-321.\u00a0 Aiding in the Commission of a Felony<\/a>, 13 V.S.A. \u00a7 3 (06\/14\/12)<\/p>\n

CR09-331.\u00a0 Accessory After the Fact<\/a>, 13 V.S.A. \u00a7 5 (07\/31\/15).\u00a0 By its terms, the Accessory After the Fact statute does not criminalize acts assisting family members or certain other related persons to escape prosecution. While many other states have repealed this exemption, the Vermont Legislature has not. See State v. Williams<\/span>, 142 Vt. 81, 86 (1982). Thus, in Williams<\/span>, the Supreme Court noted that the statute does not remove this exemption if the defendant\u2019s sibling committed the underlying felony with others, absent evidence of independent assistance to the non-related co-defendant. Id<\/span>. at 85\u201386. Furthermore, conviction for the underlying felony is not required; instead, \u201ccommission of an act which constitutes a felony is the predicate to liability for assisting the offender.\u201d Id<\/span>. at 86 (statute would still apply to defendant\u2019s actions in assisting juvenile who could not be punished as an adult, as long as act which juvenile committed was a felony). Whether the underlying crime actually constitutes a felony is a question of law on which the court should instruct the jury.<\/p>\n

CR28-041.\u00a0 Endeavoring to Incite a Felony<\/a>, 13 V.S.A. \u00a7 7 (03\/03\/06).\u00a0 Endeavoring to incite a felony differs from an attempt.\u00a0 State v. Hudon<\/span>, 103 Vt. 17 (1930).\u00a0 Endeavoring may be punished as a crime under \u00a7 7, whether or not there is any attempt, and whether a resulting attempt succeeds or fails.\u00a0 State v. Ciocca<\/span>, 125 Vt. 64 (1965).\u00a0 The Supreme Court has referred to endeavoring as the crime of solicitation.\u00a0 The crime of endeavoring may be completed whether or not the crime solicited is actually completed.\u00a0 See State v. Brown<\/span>, 147 Vt. 324, 326-27 (1986), where the defendant was convicted as a principal under the doctrine of innocent agent, but where he could have been prosecuted for endeavoring to incite the crime under \u00a7 7.<\/p>\n

The instruction calls for the insertion of the elements of the incited crime.\u00a0 Where a defendant is charged with endeavoring to incite a felony, it is probably necessary to list all of the essential elements.\u00a0 However, the amount of additional description of the felony may depend upon the facts of the specific case.\u00a0 For a discussion about the appropriate amount of \u201cdetailing\u201d see State v. Davignon<\/span>, 152 Vt. 209 (1989).<\/p>\n

CR09-201.\u00a0 Attempt<\/a>, 13 V.S.A. 9\u00a0(06\/14\/12).\u00a0 The instruction recognizes that an attempt requires an act coupled with a purposeful intent.\u00a0 Some of the language derives from State v. Morse<\/span>, 130 Vt. 92, 94 (1971). For further, more recent discussion of criminal attempt, see State v. Boutin<\/span>, 133 Vt. 531, 533 (1975); State v. Synnott<\/span>, 2005 VT 19, \u00b6 22, 178 Vt. 66; and State v. Sawyer<\/span>, 2018 VT 43, \u00b6\u00b6 12\u201322. In Sawyer<\/span>, the Supreme Court reaffirmed Vermont\u2019s longstanding attempt analysis, observing that the unavailability of an abandonment defense differentiates Vermont\u2019s law on attempt from the Model Penal Code\u2019s \u201csubstantial-step\u201d analysis. Id<\/span>. \u00b6\u00b6 20\u201322.<\/p>\n

Note that the Legislature subsequently adopted the MPC\u2019s \u201csubstantial step\u201d analysis for the crime of \u201cdomestic terrorism.\u201d 2018, No. 135, \u00a7 2 (codified at 13 V.S.A. \u00a7 1703).<\/p>\n

CR28-061.\u00a0 Habitual Criminal<\/a>, 13 V.S.A. \u00a7 11 (06\/19\/03).\u00a0 When the state seeks to penalize a defendant as an habitual criminal, it must provide notice by filing a separate charge.\u00a0 The defendant is entitled to a bifurcated proceeding, including a jury trial on the second phase to consider (1) the sufficiency of the record alleged as to the prior convictions, and (2) the defendant\u2019s identity as the person previously convicted.\u00a0 See<\/em> State<\/span> v. Angelucci<\/span>, 137 Vt. 272, 281 (1979); State v. Cameron<\/span>, 126Vt. 244, 249 (1967).<\/p>\n

\u00a0The defendant is not entitled to a jury determination as to whether a previous conviction constitutes a felony, because that issue presents a pure question of law.\u00a0 The court\u2019s determinations as to whether crimes committed in other states would have been felonies in Vermont are reviewed as questions of law.\u00a0 Angelucci<\/span> at 285.\u00a0 This approach avoids the need to ask jurors to compare Vermont statutes with foreign statutes, to match essential elements.<\/p>\n

\u00a0The instruction states: \u201cTo be convicted means to be found guilty of a crime and sentenced.\u201d\u00a0 Under V.R.Cr.P. 32(b), \u201c[a] judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence or conditions of deferment thereof.\u201d\u00a0 The reporter\u2019s notes explain that \u201c[t]he rule provides for the entry by the clerk of a formal \u2018judgment of conviction\u2019 after the sentencing of the defendant.\u201d\u00a0 V.R.Cr.P. 32(b), reporter\u2019s notes to 1980 amendment, at 182.<\/p>\n

\u00a0The Vermont Supreme Court has held that a judgment of guilt pursuant to a deferred sentence is considered a \u201cconviction\u201d for purposes of reporting a sex offense to the Department of Public Safety for inclusion in the sex offender registry.\u00a0 See<\/em> State<\/span> v. Stoddert<\/span> and State v. Thompson<\/span>, 174 Vt. 172 (2002).\u00a0 The committee believes that Stoddert and Thompson<\/span> is limited to issues of registration, and does not alter the general rule that to be \u201cconvicted\u201d means to be found guilty of a crime and sentenced.<\/p>\n

CR09-401.\u00a0 Conspiracy<\/a>, 13 V.S.A. \u00a7 1404 (06\/14\/12)<\/p>\n

CR09-501.\u00a0 Motive<\/a> (06\/18\/03)<\/p>\n

CR09-601.\u00a0 Territorial Jurisdiction<\/a> and CR09-606 Territorial Jurisdiction (simpler version)<\/a>, 13 V.S.A. \u00a7 2 (04\/21\/03).\u00a0 This instruction should be given only if the territorial jurisdiction is a material issue in the case.\u00a0 See, e.g., State v. Pellerin<\/span>, 164 Vt. 376 (1995), and State v. Mosher<\/span>, 143 Vt. 197 (1983).\u00a0 The pertinent statute provides the following:<\/p>\n

\u00a013 V.S.A. \u00a7 2. Crimes committed partly outside state.<\/p>\n

A person who, with intent to commit a crime, does an act within this state in execution or part execution of such intent, which culminates in the commission of a crime either within or without this state, shall be punished for such crime in this state in the same manner as if the same had been committed entirely within this state. A crime committed by means of an electronic communication, including a telephonic communication, shall be considered to have been committed at either the place where the communication originated or the place where it was received.<\/p>\n

The statute, and the instruction, include some difficult concepts.\u00a0 The committee recommends tailoring the instruction to the circumstances of the case.\u00a0 The instruction given should use the defendant\u2019s name, and it probably should also name any other locations that might be involved.<\/p>\n

Instruction CR09-606 provides a simpler version of the instruction on territorial jurisdiction.\u00a0 It was drafted for use in a case where a single act was alleged, and where the act might have occurred in either New Hampshire or Vermont.<\/p>\n

\n","protected":false},"excerpt":{"rendered":"

CR09-011.\u00a0 Identity of Defendant as First Element (07\/29\/05).\u00a0 Most criminal charges include identity as the first essential element, with a short instruction such as CR09-011.\u00a0 In some cases it may be appropriate to elaborate, such as where the issue of … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":436,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-812","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/812","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=812"}],"version-history":[{"count":13,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/812\/revisions"}],"predecessor-version":[{"id":1698,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/812\/revisions\/1698"}],"up":[{"embeddable":true,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/436"}],"wp:attachment":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=812"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}